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In many Frye jurisdictions soft science such as psychology and psychiatry enjoys an exemption from the general acceptance test. E.g., People v. McDonald, 690 P.2d 709, 723-24 (Calif. 1984). When a proponent offers expert testimony based on one of these disciplines, the trial judge may inquire whether the witness qualifies as an expert and whether the subject is beyond the ken of laypersons. However, the proponent need not demonstrate that the expert’s theory or technique is generally accepted or has been empirically validated. When the Supreme Court handed down Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), initially it was unclear whether there would be an exemption from the new reliability test for soft science. However, the opinion seemed to endorse a broad view of science. And even immediately after the opinion, many lower courts began subjecting psychological testimony to scrutiny. “Comment, Admissibility of Expert Psychological Testimony in the Federal Courts,” 27 Ariz. St. L.J. 1315 (1995). Any remaining doubt about the question evaporated when the court rendered its 1999 decision in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). Justice Stephen G. Breyer acknowledged that other species of expertise cannot be validated in the same ways as propositions in hard scientific fields such as physics. Square pegs can have a difficult time squeezing into round holes. But Daubert had read the reference to “knowledge” in Federal Rule of Evidence 702 as requiring that the basis of any expert’s opinion be more than subjective belief or unsubstantiated assertion. Kumho announced that Rule 702′s reliability requirement applies to every type of expertise. If soft science not exempted, reliability question arises If soft science is not exempt, the question arises: How does the proponent demonstrate that the expert’s theory or technique is “reliable” and rests on more than ipse dixit? To be sure, as Daubert noted, the general acceptance of the theory or technique is a relevant factor. 590 U.S. at 594. In many published opinions involving soft science, the courts have attached great significance to that factor. See Dixon & Gill, “Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision,” 8 Psych., Pub. Pol’y & L. 251 (2002). Thus, if a psychiatrist testifies that she has used diagnostic criteria approved by the American Psychiatric Association in Diagnostic and Statistical Manual of Mental Disorders IV-TR (2000), that foundational testimony cuts strongly in favor of the admissibility of her opinion. However, in many situations the judge can and should demand more. Some cynics have despaired that we can never achieve substantive accuracy in “soft” scientific endeavors. However, in some cases there are techniques that the expert can employ to provide greater assurance that the expert’s ultimate diagnostic opinion is accurate. In particular, there are numerous available techniques for detecting malingering. The techniques tend to fall into four categories. Unstructured interviews. For years clinicians have interviewed patients, and they have identified certain indicators of deception. See Richard Rogers, Clinical Assessment of Malingering and Deception, (2d ed. 1997). The indicia include these clues: • The patient reports preposterous symptoms. • The patient reports rare symptoms that occur infrequently in the normative clinical group, for example, in less than 5% of the group. • The subject indiscriminately endorsed a large number of symptoms, for instance more than two-thirds of the possible symptoms for a mental disorder. • While the patient reports the obvious symptoms for the mental state, he or she does not describe any of the subtler symptoms. • The subject reports the sudden onset of a mental illness that ordinarily gradually emerges. • The subject describes unrealistically severe symptoms. For example, the subject claims that he or she has suffered from a virtually unbearable level of symptoms for almost all of his or her life. Multiscale personality inventories. Several standard psychological tests have been used to assist in the detection of malingering. Bagby, Gillis & Dickens, “Detection of Dissimulation with the New Generation of Objective Personality Measures,” 8 Behav. Sci. & L. 93 (1990). There is a good deal of evidence that malingerers faking a mental illness perform differently on such inventories than persons actually suffering from the illness. A malingerer’s performance on even simple tasks on the test might be atypically bad � that is, two standard deviations below the performance for the normative clinical group. There is a common sense inference that the subject recognized the correct answer but deliberately chose an incorrect answer. The most widely used inventory for this purpose is the Minnesota Multiphasic Personality Inventory-2. There is comparative data for the performance of a normative group of 3,475 patients on MMPI-2. Researchers have developed several scales and indices to detect malingerers. Specialized screening instruments. The first two categories include techniques that have other uses but have been adapted to assist in the detection of deception. However, there are techniques specially designed to identify malingering. There are full-fledged instruments as well as screening instruments. Smith, “Assessment of Malingering with Self-Report Instruments,” in Clinical Assessment of Malingering and Deception 351 (Rogers, 2d ed. 1997). There are numerous screening tests, including the Tehachapi Malingering Scale (TMS) and the Malingering Probability Scale (MPS). Easily the most popular screen is the M Test. That methodology has been subjected to more rigorous testing than any other screen. It is specifically designed to detect the malingering of schizophrenia. The test consists of 33 true-false items with three scales. The attempts to validate the test have been mixed, but in some tests the researchers correctly classified the vast majority of subjects in the high 80 percents. The consensus is that these screening tests should be used only as the initial stage of assessment. A screening test result indicating malingering must be confirmed by a more thorough, specialized instrument. Full-fledged specialized malingering instruments. There are numerous full-fledged instruments for detecting malingering. The most widely employed test is the Structured Interview of Reported Symptoms (SIRS). The current version includes 172 items. There are eight primary scales and five supplementary ones for evaluating the test results. There has been extensive validation research with SIRS, and the studies “have demonstrated consistently its usefulness in classifying feigners and honest responders.” Richard Rogers, “Structured Interviews and Dissimulation,” Clinical Assessment of Malingering and Deception 324 (2d ed. 1997). In several studies, the accurate hit rate reached percentages in the high 80s or 90. The test has been cross-validated, that is, tested to detect both persons instructed to malinger and known malingerers. Id. None of these tests is infallible. However, when several � for instance, an unstructured interview, a multiscale personality inventory and a full-fledged specialized malingering instrument � all point to the conclusion that the subject is feigning, there is good reason to doubt the subject’s honesty. At first blush, tests have limited utility At first blush, these tests might seem to be of limited utility. They appear to yield only the finding that the person currently is not suffering from the claimed disorder. That finding could be useful in a civil action in which a plaintiff claimed that as a result of a prior accident, he or she now has a certain disorder. However, what about a criminal case in which the issue is whether the person suffered from that disorder earlier at the time of the actus reus? Can these malingering detection techniques assist in that type of case? At least in some cases these techniques can be helpful in evaluating a claim that someone was laboring under a mental illness at a prior point in time. Many serious mental illnesses are chronic in nature. J. Parry & E. Drogin, Mental Disability: Law, Evidence and Testimony 227 (2007). Schizophrenia is such an illness. D. Barlow & M. Durand, Abnormal Psychology: An Interegrative Approach (1999). If untreated, some of these illnesses can persist for years; their onset is gradual, and they go into remission gradually. Suppose that an accused claimed that at the time of the actus reus a year earlier, he or she suffered from a particular mental illness that negated mens rea. Assume further that using malingering detection techniques, a psychiatrist reaches a firm conclusion that the accused does not currently have that mental disorder. Given the chronic nature of the disorder, if the accused did not receive treatment in the interim, the present absence of the illness would be at odds with the claim that the accused previously suffered from the illness. It is critical not to overstate the probative value of these tests. To begin with, the mental health community has not developed techniques for all the mental disorders and conditions that can be relevant in legal proceedings. Moreover, as previously stated, no competent mental health expert would rest a conclusion of malingering on a single test outcome, even the result of a full-fledged specialized instrument. However, we should not despairingly conclude that we must disregard Daubert-Kumho‘s reliability requirement to rationalize the admissibility of mental health testimony. As evidenced by DSM IV-TR, the mental health community has made great strides in the past few decades. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He can be reached at [email protected].

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